M.H. v. SWITZERLAND

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant is a Swiss citizen residing in Altendorf. Before

the Commission he is represented by Mr. M. Ziegler, a lawyer practising

at Lachen.

Proceedings concerning the applicant's conviction

On 25 February 1990, at 17h30, the Cantonal Police

(Kantonspolizei) of the Canton of Graubünden arrested the applicant by

virtue of a warrant of arrest issued by investigating judge (Untersu-

chungsrichter) M. The applicant, who was suspected of having set fire

to a car and later having reported it as stolen, was remanded in police

custody (Polizeihaft).

On 26 February 1990, at 15h30, the applicant was questioned by

investigating judge M. whereupon the applicant made a full confession.

On 27 February 1990, at 16h00, the applicant was released.

On 14 May 1991 the public prosecutor (Staatsanwalt) charged the

applicant and another person with having committed the offences of

attempted fraud (versuchter Betrug) and of misleading the

administration of justice (Irreführung der Rechtspflege). The bill of

indictment did not refer to any particular facts of the case, and

proposed no particular punishment.

Also on 14 May 1991, investigating judge M. submitted a

supplement to the bill of indictment in which he demanded a sentence

of 12 months' imprisonment for the applicant, considering that he and

his accomplice had committed incomplete attempted insurance fraud.

Thus, on 24 February 1990, they had driven a car up to a mountain pass

where they had set it on fire; they had then reported the car as being

stolen. The supplement also requested revocation of a prison sentence

of ten days to which the applicant had been sentenced on probation by

another court on 13 June 1988.

On 16 May 1991 the Oberengadin District Office (Kreisamt)

informed the applicant that the "indictment documents" (Anklageakten)

had arrived at the District Office; that the applicant had the

opportunity to consult the documents at the District Office until

31 May 1991; that the documents would be transmitted to his lawyer to

be returned until 31 May 1991; and that the indictment would not be

brought orally. In the applicant's submission, his lawyer did not

receive the supplement to the bill of indictment.

On 4 June 1991 the applicant's lawyer returned the documents

received; he also informed the Oberengadin District Court

(Kreisgericht) that he would not be present at the trial on

14 June 1991.

The trial took place on 14 June 1991. The applicant was present,

but not his lawyer. According to the ensuing judgment, the indictment

was not stated orally. On the same day, the Oberengadin District Court

sentenced the applicant to ten months' imprisonment, suspended on

probation, for attempted fraud and misleading the administration of

justice. The suspension of the previous prison sentence was revoked.

The judgment listed inter alia the facts as established in the bill of

indictment, and the punishment proposed in the supplement to the bill

of indictment.

In his appeal to the Cantonal Court (Kantonsgericht) of the

Canton of Graubünden, the applicant requested the court to find that

he had on his own accord not completed the offence of fraud, rather

than having committed an incomplete offence. He further requested that

the prison sentence be reduced and that the suspension of the earlier

prison sentence be maintained. He also alleged a breach of Article 6

para. 1 of the Convention in view of the functions exercised by

investigating judge M., and requested costs and expenses to be

attributed to the Oberengadin District Office.

On 21 August 1991 the Cantonal Court partly upheld the appeal and

reduced the sentence from ten to six months' imprisonment, suspended

on probation. No oral hearing was held, and the judgment was not

pronounced orally.

The applicant's public law appeal (staatsrechtliche Beschwerde)

was dismissed by the Federal Court (Bundesgericht) on 25 March 1992.

In its decision the Federal Court first found that it was not

competent to deal with the applicant's public law appeal insofar as he

requested more than the quashing of the previous decision.

Insofar as the applicant complained of investigating judge M.,

who had also prepared the indictment, the Court referred to Section 72

para. 1 of the Code of Criminal Procedure (Strafprozessordnung; see

below, Relevant domestic law) of the Canton of Graubünden according to

which investigating judges are only empowered to arrest people, not to

impose detention on remand. The decision continued:

<Translation>

"Contrary to the applicant's opinion, the law determines as the

judge who shall order detention on remand within the meaning of

Article 5 para. 3 of the Convention the public prosecutor and not

the investigating judge ... In the case at issue ... the accused

was released from police custody after being temporarily arrested

within the period prescribed by law, without the public

prosecutor having ordered detention on remand. The complaint

that, contrary to Article 5 para. 3 of the Convention,

investigating judge M. had first acted as judge ordering

detention on remand and later as representative of the

prosecution is therefore manifestly unfounded."

<German>

"Als haftanordnenden Richter im Sinne von Art. 5 Ziff. 3 EMRK

bestimmt das Gesetz somit entgegen der Meinung des

Beschwerdeführers nicht den Untersuchungsrichter sondern den

Staatsanwalt ... Im vorliegend zu beurteilenden Fall ... ist der

Angeschuldigte nach der vorläufigen Festnahme innert der

gesetzlichen Frist wieder aus dem Polizeiverhaft entlassen

worden, ohne dass vom Staatsanwalt Untersuchungshaft angeordnet

worden wäre. Die Rüge, Untersuchungsrichter M. habe entgegen Art.

5 Ziff. 3 EMRK zuerst als Haftanordnungsrichter und später als

Anklagevertreter fungiert, geht somit offensichtlich fehl."

The Court then dealt with the applicant's complaint under

Article 6 para. 3 (b) of the Convention that he had not been informed

of the supplement to the bill of indictment. The Court noted that on

16 May 1991 the Oberengadin District Office had informed the applicant

that he could consult the case-file, part of which had been the

supplement to the indictment. However, he had failed to do so.

Insofar as the applicant complained under Article 6 para. 1 of

the Convention that the Cantonal Court had not conducted an oral

hearing and had not pronounced its judgment orally, the Federal Court

stated:

<Translation>

"The applicant does not allege that he duly requested an oral

appeal hearing according to S. 144 para. 1 of the Code of

Criminal Procedure of the Canton of Graubünden. Furthermore,

such a request does not transpire from the file. Therefore the

applicant cannot subsequently complain about the lack of an oral

appeal hearing and of public pronouncement of the judgment. The

invocation of Article 6 para. 1 of the Convention is belated ...

The accused might have a compulsory right personally to be

present at the appeal hearing if a reformatio in peius was

possible ... This is not the case here ..."

<German>

"Der Beschwerdeführer macht nämlich nicht geltend, dass er

rechtzeitig die Durchführung einer mündlichen

Berufungsverhandlung gemäss Art. 144 Abs. 1 StPO/GR verlangt

habe. Ein solcher Antrag ist auch nicht aus den Akten

ersichtlich. Folgerichtig kann der Beschwerdeführer nicht

nachträglich die fehlende öffentliche Berufungsverhandlung und

Urteilsverkündung beanstanden. Die Anrufung von Art. 6 Ziff. 1

EMRK erfolgt verspätet... Ein zwingendes Recht auf persönliche

Teilnahme an der Rechtsmittelverhandlung stünde dem Angeklagten

allenfalls zu, wenn eine reformatio in peius möglich wäre ...

Dies ist hier nicht der Fall ..."

Proceedings concerning the applicant's request for compensation

On 26 May 1992 the applicant filed a request with the Samedan

investigating judge's office under Article 5 para. 5 of the Convention

for compensation amounting to 3,000 SFr for unlawful detention. He

submitted in particular that the length of his detention had exceeded

the time envisaged by Article 5 para. 3 of the Convention.

On 17 June 1992 the Samedan investigating judge dismissed the

request finding that the applicant's detention had not exceeded the

maximum period of 48 hours envisaged by the Code of Criminal Procedure.

The applicant's appeal was dismissed on 6 August 1992 by the

Cantonal Court of the Canton of Graubünden, the decision being served

on the applicant on 5 February 1993. The Court found inter alia that

the period envisaged by the Convention organs under Article 5 para. 3

of the Convention could be up to three or four days, whereas in the

applicant's case it had lasted less than two days.

The applicant's public law appeal was partly upheld by the

Federal Court on 26 May 1993.

Insofar as the applicant complained under Article 6 para. 1 of

the Convention of the length of the compensation proceedings, in

particular the period of time required by the Cantonal Court to serve

its decision of 6 August 1992, the Federal Court found that the

proceedings had not lasted inordinately long, and that three levels of

jurisdiction had been involved.

The Federal Court further dismissed the applicant's complaint

that the previous court had not conducted an oral hearing, as it did

not transpire from the case-file that the applicant had filed a request

for such a hearing.

The Court then dealt with the applicant's request that he had not

been brought promptly before a judge within the meaning of Article 5

para. 3 of the Convention:

<Translation>

"In the appeal statement it is neither claimed nor demonstrated

that investigating judge M. was not a judge or judicial officer

within the meaning of Article 5 para. 3 of the Convention.

Already in its decision of 25 March 1992 the Federal Court noted

that there was no unity of personal functions between the judge

ordering detention on remand and the representative of the

prosecution ...; it can therefore not be assumed that, in this

respect, there was bias on the part of the investigating judge

... It furthermore transpires from the file that the

investigating judge had himself been competent to release the

applicant from detention in the afternoon of 27 February 1990;

the latter therefore had the powers required for the judge or

judicial officer. In the present case it must therefore be

assumed that according to the law of the Canton of Graubünden the

investigating judge satisfied the requirements of Article 5

para. 3 of the Convention."

<German>

"Es wird in der Beschwerdeschrift weder behauptet noch dargetan,

Untersuchungsrichter M. sei kein Richter oder richterlicher

Beamter im Sinne von Art. 5 Ziff. 3 EMRK. Bereits im Urteil vom

25. März 1992 hat das Bundesgericht ausgeführt, dass keine

Personalunion von Haftanordnungsrichter und Anklagevertreter

bestanden habe ... ; unter diesem Aspekt kann daher nicht

Voreingenommenheit des Untersuchungsrichters angenommen werden

... Aus den Akten ist ferner ersichtlich, dass der

Untersuchungsrichter den Beschwerdeführer am Nachmittag des 27.

Februars 1990 in eigener Kompetenz aus der Haft entlassen hat;

dieser verfügte damit über eine für die Umschreibung des Richters

oder richterlichen Beamten notwendige Befugnis. Es ist daher

davon auszugehen, dass der Untersuchungsrichter nach

bündnerischem Recht im vorliegenden Fall den Anforderungen von

Art. 5 Ziff. 3 EMRK genügte."

The Court nevertheless quashed the previous decision as it found

that, after the applicant's confession on 26 February 1990, there had

no longer been a reason to keep him in custody and that his detention

had therefore lasted unnecessarily long.

Section 72 para. 1 of the Code of Criminal Procedure of the

Canton of Graubünden states, insofar as relevant:

<Translation>

"The investigating judges ... are authorised if necessary

temporarily to arrest persons suspected of having committed

offences or misdemeanours ... The public prosecutor must

immediately be informed of the arrest; he will decide within

48 hours whether detention must be maintained as detention on

remand ..."

<German>

"Die Untersuchungsrichter ... sind befugt, nötigenfalls die eines

Verbrechens oder Vergehens verdächtigten Personen vorläufig

festzunehmen ... Die Festnahme ist sofort dem Staatsanwalt zu

melden, der innert 48 Stunden darüber entscheidet, ob sie als

Untersuchungshaft aufrechtzuerhalten ist ..."

Section 100 concerns the indictment (Anklage) and states:

<Translation>

"1. The Public Prosecutor is entitled to bring the indictment

before all courts. Before the District Court and the District

Court Committee the indictment is as a rule brought by the

investigating judge. Also in proceedings before the Cantonal

Court and the Cantonal Court Committee the Public Prosecutor may

authorise an investigating judge to bring the indictment.

2. Before the Cantonal Court the indictment is always brought

orally, before the other courts only if the Public Prosecutor's

Office or the Court President regards this as necessary.

3. If the indictment is not brought orally, the Public

Prosecutor's Office supplements the bill of indictment with a

written request containing the important considerations."

<German>

"1. Der Staatsanwalt ist befugt, die Anklage vor allen

Gerichten zu vertreten. Vor Kreisgericht und

Kreisgerichtsausschuss vertritt sie in der Regel ein

Untersuchungsrichter. Der Staatsanwalt kann auch im Verfahren

vor Kantonsgericht und Kantonsgerichtsausschuss einen

Untersuchungsrichter mit der Anklagevertretung beauftragen.

2. Vor Kantonsgericht wird die Anklage stets mündlich

vertreten, vor den übrigen Gerichten nur, wenn die

Staatsanwaltschaft oder der Gerichtspräsident es für erforderlich

halten.

3. Wird die Anklage nicht mündlich vertreten, so ergänzt die

Staatsanwaltschaft die Anklageschrift durch einen schriftlichen

Antrag mit den wesentlichen Erwägungen."

COMPLAINTS

1. The applicant complains under Article 5 para. 3 of the Convention

that investigating judge M. ordered his arrest and later prepared a

supplement to the bill of indictment. The applicant points out that

in its decision of 25 March 1992 the Federal Court dismissed his public

law appeal on the ground that the applicant had not been remanded in

custody; in its decision of 26 May 1993 the Federal Court found that

the investigating judge indeed had had judicial powers for custody.

2. The applicant raises various complaints under Article 6 para. 1

of the Convention:

- He submits that investigating judge M. was biased as his

proposals in the supplement to the bill of indictment were extremely

severe.

- He further complains, also under Article 6 para. 3 (b) of the

Convention, that he was not informed of the supplement to the bill of

indictment. While the case-file was sent to his lawyer, the supplement

was not included. Thus, he was not informed of investigating judge

M.'s proposal to revoke the suspension of a previous sentence.

- Moreover, the Cantonal Court gave its decision of 21 August 1991

without an oral hearing and did not pronounce its judgment publicly.

- The applicant also complains of the length of the compensation

3. Under Article 13 of the Convention the applicant complains that

the Federal Court in its decision of 25 March 1992 did not regard

itself as competent to deal with his requests insofar as he had

requested more than the quashing of the previous decision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 October 1992 and registered

on 6 November 1992.

On 5 April 1995 the Commission decided to communicate the

application to the respondent Government in respect of the applicant's

complaint under Article 6 paras. 1 and 3 (b) of the Convention that he

was not informed of the supplement to the bill of indictment.

The Government's written observations were submitted on

14 June 1995. The applicant replied on 4 September 1995.